Estoppel Future Uncertain
As pointed out last month, the SCOTUS has sought the Solicitor General’s input in Apple et al., v. California Institute of Technology. If the case is taken up, the Court will consider limiting the scope of IPR estoppel to art that was included in the petition, and that art which reasonably could have been raised “during the IPR.”
At present, “reasonably could have raised” is assessed at the time the petition is drafted (i.e., what could have been included in the petition), not what could have been included in the later trial (which is effectively nothing). While it is far from certain whether the Court will take the case — let alone narrow estoppel— petitioners might still consider their stipulation wording until this dispute is settled.Continue Reading Sotera Stipulations to Haunt PTAB Petitioners?